Electoral College Reform: 110th Congress Proposals, the National Popular Vote Campaign, and Other Alternative Developments

December 8, 2008 –
February 9, 2009
RL34604

American voters elect the President and Vice President indirectly, through presidential electors. Established by Article II, Section 1, clause 2 of the U.S. Constitution, this electoral college system has evolved continuously since the first presidential elections. Despite a number of close contests, the electoral college system has selected the candidate with the most popular votes in 47 of 51 presidential elections since the current voting system was established by the 12th Amendment in 1804. In three cases, however, candidates were elected who won fewer popular votes than their opponents, and in a fourth, four candidates split the popular and electoral vote, leading to selection of the President by the House of Representatives. These controversial elections occur because the system requires a majority of electoral, not popular, votes to win the presidency. This feature, which is original to the U.S. Constitution, has been the object of persistent criticism and numerous reform plans. In the contemporary context, proposed constitutional amendments generally fall into two basic categories: those that would eliminate the electoral college and substitute direct popular election of the President and Vice President, and those that would retain the existing system in some form, while correcting its perceived defects.

Reform or abolition of the electoral college as an institution would require a constitutional amendment, so these proposals take the form of House or Senate joint resolutions. Three relevant amendments were introduced in the 110th Congress. H.J.Res. 36, (Representative Jesse Jackson, Jr.) sought to provide for direct popular election, requiring a majority of votes for election. H.J.Res. 4, the Every Vote Counts Amendment, (Representative Gene Green et al.) also sought to establish direct popular election, but with a popular vote plurality, rather than a majority, for election. It would proposed additional powers to regulate presidential elections for the states and the federal government. The third, S.J.Res. 39 (Senator Bill Nelson of Florida), proposed establishment of direct popular election, as well as authorizing congressional, and thus federal, authority over certain aspects of election administration.

Supporters of direct election advanced another option in 2006, the National Popular Vote (NPV) plan. This would bypass the electoral college system through a multi-state compact enacted by the states. Relying on the states’ constitutional authority to appoint electors, NPV would commit participating states to choose electors committed to the candidates who received the most popular votes nationwide, notwithstanding results within the state. NPV would become effective when adopted by states that together possess a majority of electoral votes (270). At the present time, four states with a combined total of 50 electoral votes (Hawaii, 4; Illinois, 21; Maryland, 10; and New Jersey, 15) have approved the compact.

For additional information on contemporary operation of the system, please consult CRS Report RL32611, The Electoral College: How It Works in Contemporary Presidential Elections, by Thomas H. Neale. This report will not be updated.

Appendixes

Summary

American voters elect the President and Vice President indirectly, through presidential electors. Established by Article II, Section 1, clause 2 of the U.S. Constitution, this electoral college system has evolved continuously since the first presidential elections. Despite a number of close contests, the electoral college system has selected the candidate with the most popular votes in 47 of 51 presidential elections since the current voting system was established by the 12th Amendment in 1804. In three cases, however, candidates were elected who won fewer popular votes than their opponents, and in a fourth, four candidates split the popular and electoral vote, leading to selection of the President by the House of Representatives. These controversial elections occur because the system requires a majority of electoral, not popular, votes to win the presidency. This feature, which is original to the U.S. Constitution, has been the object of persistent criticism and numerous reform plans. In the contemporary context, proposed constitutional amendments generally fall into two basic categories: those that would eliminate the electoral college and substitute direct popular election of the President and Vice President, and those that would retain the existing system in some form, while correcting its perceived defects.

Reform or abolition of the electoral college as an institution would require a constitutional amendment, so these proposals take the form of House or Senate joint resolutions. Three relevant amendments were introduced in the 110th Congress. H.J.Res. 36, (Representative Jesse Jackson, Jr.) sought to provide for direct popular election, requiring a majority of votes for election. H.J.Res. 4, the Every Vote Counts Amendment, (Representative Gene Green et al.) also sought to establish direct popular election, but with a popular vote plurality, rather than a majority, for election. It would proposed additional powers to regulate presidential elections for the states and the federal government. The third, S.J.Res. 39 (Senator Bill Nelson of Florida), proposed establishment of direct popular election, as well as authorizing congressional, and thus federal, authority over certain aspects of election administration.

Supporters of direct election advanced another option in 2006, the National Popular Vote (NPV) plan. This would bypass the electoral college system through a multi-state compact enacted by the states. Relying on the states' constitutional authority to appoint electors, NPV would commit participating states to choose electors committed to the candidates who received the most popular votes nationwide, notwithstanding results within the state. NPV would become effective when adopted by states that together possess a majority of electoral votes (270). At the present time, four states with a combined total of 50 electoral votes (Hawaii, 4; Illinois, 21; Maryland, 10; and New Jersey, 15) have approved the compact.

Electoral College Reform: 110th Congress Proposals, the National Popular Vote Campaign, and Other Alternative Developments

Introduction

American voters elect the President and Vice President of the United States under a complex arrangement of constitutional provisions, federal and state laws, and political party practices known as the electoral college system.1 Despite occasional close elections, this system has selected the candidate with the most popular votes in 47 of the past 51 elections since the 12th Amendment was ratified in 1804.2 These other elections have been negatively characterized by some commentators as electoral college "misfires." In three instances (1876, 1888 and 2000), the electoral college awarded the presidency to candidates who won a majority of electoral votes, but gained fewer popular votes than their principal opponents. In a fourth case (1824), the House of Representatives decided the contest by contingent election because no candidate had an electoral vote majority.3 These controversial elections occurred because the system requires a majority of electoral, not popular, votes to win the presidency, and this feature, which is original to U.S. Constitution, has been the object of persistent criticism and numerous reform plans.

The most recent instance in which the popular vote runner up received a majority in the electoral college occurred in 2000, when George W. Bush and Richard B. Cheney were elected over Al Gore, Jr. and Joseph I. Lieberman, despite having won fewer popular votes.

The 2000 election outcome hinged on the State of Florida, where popular vote totals were extremely close but uncertain after the polls closed. This was due in part to confusing ballots and poorly maintained machinery in some Florida counties, which contributed to uncertainties over which candidate had won the popular vote. Various attempts to conduct recounts or ascertain individual voters' intentions led to a bitter and protracted struggle that continued for over a month following election day. A Supreme Court decision4 ended further recounts, leading to certification of Bush-Cheney electors in Florida, and the Republicans' subsequent election.

Following the 2000 presidential election, both the electoral college system and the shortcomings of election administration procedures and voting machinery (the latter two historically a responsibility of state and local governments) were criticized. While a number of constitutional amendments were proposed, the 107th Congress addressed the latter element of this issue with the enactment of the Help America Vote Act, "HAVA" (P.L. 107-252, 116 Stat. 1666), in 2002. This act, passed with broad bipartisan support, established national standards for voting systems and certain election procedures, and included a program of grants to assist state and local governments in meeting the act's goals.5

The successful passage of HAVA contrasted with the lack of legislative activity in recent Congresses on proposed constitutional amendments that would eliminate or reform the electoral college system. The contrast serves to highlight the comparative difficulties faced by would-be electoral college reformers. The fundamentals of the electoral college system were established by the Constitution, and can only be altered by a constitutional amendment, a much more difficult process than the passage of legislation. Moreover, HAVA's prospects for enactment were boosted by the fact that, while few would defend the sometimes embarrassing failures in voting technology that contributed to passage of the act, efforts to eliminate the electoral college would arguably be vigorously opposed in Congress and the public forum by its various advocates and defenders.

Not all approaches to electoral college reform necessarily involve action at the federal level, however. In 2004, for instance, Colorado voters rejected a proposed amendment to the state constitution that would have established the proportional system, one variant of electoral college reform (discussed in the Appendix) in that state. More recently, the National Popular Vote (NPV) movement is currently coordinating a campaign that would rely on a multi-state compact, in the form of binding state legislation, to guarantee that the popular vote winners in every election would also win the electoral vote.

A wide range of constitutional proposals to reform presidential election procedures have been introduced over time. In recent decades, they have fallen into two categories: (1) those that seek to eliminate the electoral college system entirely and replace it with direct popular election; and (2) those that seek to repair perceived defects while preserving the existing system.

Direct Popular Election

The direct election alternative would abolish the electoral college, substituting a single nationwide count of popular votes. The candidates winning a plurality of votes would be elected President and Vice President. Most direct election proposals would constitutionally mandate today's familiar joint tickets of presidential/vice presidential candidates, a feature that is already incorporated in state law.6 Some would require simply that the candidates winning the most popular votes be elected. Others, however, would set a minimum threshold of votes necessary to win election—generally 40% of votes cast; in some proposals a majority would be required. According to these proposals, if no presidential ticket were to attain the 40% or majority threshold, then the two tickets with the highest popular vote total would compete in a subsequent runoff election. Alternatively, some versions would provide for Congress, meeting in joint session, to elect the President and Vice President if no ticket received 40% of the vote.

Direct Popular Election: Pro and Con

Pro

Proponents of direct popular election cite a number of factors in support of their proposal. At the core of their arguments, they assert that the process would be simple, national, and democratic.

They assert that direct popular election would provide for a single, democratic choice, allowing all the nation's voters to choose directly the two highest-ranking executive branch officials in the United States government, the President and Vice President.

Further, the candidates who won the most popular votes would always win the election. Under some direct election proposals, if no presidential ticket received at least 40% of the vote, the voters would then choose between the two tickets that gained the most votes in a runoff election. Other direct election proposals would substitute election by a joint session of Congress for a runoff if no ticket received at least 40% of the vote.

Every vote would carry the same weight in the election, no matter where in the nation it was cast. No state would be advantaged, nor would any be disadvantaged.

Direct election would eliminate the potential complications that could arise under the current system in the event of a presidential candidate's death between election day and the date on which electoral vote results are declared, since the winning candidates would become President-elect and Vice President-elect as soon as the popular returns were certified.7

All the various and complex mechanisms of the existing system, such as provisions in law for certifying the electoral vote in the states and the contingent election process, would be supplanted by these comparatively simple requirements.8

Con

Electoral college defenders oppose these arguments, pointing to what they assert are flaws in direct election.

Direct election proponents claim their plan is more democratic, and provides for "majority rule," yet most direct election proposals require that victorious candidates gain as little as 40% of the vote (less than a majority) in order to be elected. Others, moreover, include no minimum vote threshold at all. These critics ask, how could plurality Presidents be reconciled with the requirement for strict "majority rule" demanded by direct election's proponents?

Opponents maintain that direct popular election, without the filtering device of the electoral college, might result in political fragmentation, as various elements of the political spectrum form competing parties, and regionalism, as candidates claiming to champion the particular interests of various parts of the country entered presidential election contests.

Further, they assert that direct election would foster acrimonious and protracted post-election struggles, rather than eliminate them. For instance, as the presidential election of 2000 demonstrated, close results in a single state in a close election are likely to be bitterly contested. Under direct election, those favoring the electoral college argue, every close election might resemble the post-election contests in 2000, not just in one state, but nationwide, as both parties seek to gain every possible vote. Such rancorous disputes could have profound negative effects on political comity in the nation, and, in the worst case, might undermine the stability and legitimacy of the federal government. To those who suggest that the struggle over Florida's popular vote returns in 2000 was unique, they could cite the example of Ohio in 2004, where multiple legal actions were pursued even though the popular vote margin for the winning candidates exceeded 118,000.9

Electoral College Reform

Reform measures that would retain the electoral college in some form have included several variants; most versions of these plans would eliminate the office of elector, would award electoral votes directly to the candidates, and would retain the requirement that a majority of electoral votes is necessary to win the presidency. In common with direct election, most would also require joint tickets of presidential-vice presidential candidates, a practice currently provided by state law. The three most popular reform proposals include (1) the automatic plan, which would award electoral votes automatically and on the current winner-take-all basis in each state; (2) the district plan, as currently adopted in Maine and Nebraska, which would award one electoral vote to the winning ticket in each congressional district in each state, and each state's two additional electoral votes awarded to the statewide popular vote winners; and (3) the proportional plan, which would award each state's electoral votes in proportion to the percentage of the popular vote gained by each ticket. More detailed explanations of these alternatives are included in the Appendix to this report.

Electoral College Reform: Pro and Con

Pro

Defenders of the electoral college, either as presently structured, or reformed, offer various arguments in its defense.

They reject the suggestion that it is undemocratic. Electors are chosen by the voters in free elections, and have been in nearly all instances since the first half of the 19th century.

The electoral college system prescribes a federal election of the President by which votes are tallied in each state. The United States is a federal republic, in which the states have a legitimate role in many areas of governance, not the least of which is presidential elections. The Founders intended that choosing the President would be an action American voters take both as citizens of the United States, and as members of their state communities.

While electoral vote allocation does provide the "constant two," or "senatorial" electors for each state, regardless of population, defenders believe this is another federal element in our constitutional system, and is no less justifiable than equal representation for all states in the Senate. Moreover, the same formula also assigns additional electors equal in number to each state's delegation in the House of Representatives.

Further, defenders reject the suggestion that less populous states like Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming, as well as the District of Columbia, each of which casts only three electoral votes, are somehow "advantaged" when compared with California (currently 55 electoral votes). These 55 votes alone, they note, constitute more than 20% of the electoral votes needed to win the presidency, thus conferring on California voters, and those of other populous states, a "voting power" advantage that far outweighs the minimal arithmetical edge conferred on the smaller states.10

The electoral college system promotes political stability, they argue. Parties and candidates must conduct ideologically broad-based campaigns throughout the nation in hopes of assembling a majority of electoral votes. The consequent need to forge national coalitions having a wide appeal has been a contributing factor in the moderation and stability of the two-party system.

They find the "faithless elector" phenomenon to be a specious argument.11 Only nine such electoral votes have been cast against instructions since 1820, and none has ever influenced the outcome of an election. Moreover, nearly all electoral college reform plans would remove even this slim possibility for mischief by eliminating the office of elector.

Con

Supporters of direct election and critics of the electoral college counter that the existing system is cumbersome, potentially anti-democratic, and beyond saving. The following asserted failings are frequently cited.

The electoral college, direct election supporters assert, is the antithesis of their simple and democratic proposal. It is, they contend, philosophically obsolete: indirect election of the President is an 18th century anachronism that dates from a time when communications were poor, the literacy rate was much lower, and the nation had yet to develop the durable, sophisticated, and inclusive political system it now enjoys.

They find the 12th Amendment provisions that govern cases in which no candidate attains an electoral college majority (contingent election) to be even less democratic than the primary provisions of Article II, Section 1.12

By providing a fixed number of electoral votes per state that is adjusted only after each census, they maintain, the electoral college does not accurately reflect state population changes in intervening elections.

They assert that the two "constant" or "senatorial" electors assigned to each state regardless of population give some of the nation's least populous jurisdictions a disproportionate advantage over more populous states, from this viewpoint.

The office of presidential elector itself, they note, and the resultant "faithless elector" phenomenon (see footnote 10), provide opportunities for political mischief and deliberate distortion of the voters' choice.

They argue that by awarding all electoral votes in each state to the candidates who win the most popular votes in that state, the winner-take-all system effectively disenfranchises everyone who voted for other candidates. Moreover, this same arrangement is the centerpiece of one category of electoral college reform proposal, the automatic plan. For more on the proportional plan, see the Appendix to this report.

Critics further note that, although all states currently provide for choice of electors by popular vote, state legislatures still retain the constitutional option of taking this decision out of the voters' hands, and selecting electors by some other, less democratic means.13 This option was, in fact, discussed in Florida in 2000 during the post-election recounts, when some members of the legislature proposed to convene in special session and award the state's electoral votes, regardless of who won the popular contest in the state. The survival of this option demonstrates that even one of the more "democratic" features of the electoral college system is not guaranteed, and could be changed arbitrarily by politically motivated state legislators.14

Finally, the electoral college system has the potential to elect presidential and vice presidential candidates who obtain an electoral vote majority, but fewer popular votes than their opponents, as happened in 2000, 1888, and 1876. While a system that allows such a perceived miscarriage of the popular will might have been acceptable in the 19th century, opponents maintain that it has no place in the 21st.

110th Congress Proposals

Three constitutional amendments concerning the electoral college system were introduced in the 110th Congress, H.J.Res. 4, and H.J.Res. 36 in the House of Representatives, and S.J.Res. 39 in the Senate.

H.J. Res. 4

This measure, the Every Vote Counts Amendment, was introduced by Representative Gene Green of Texas on January 4, 2007. Representatives Brian Baird and William D. Delahunt joined as cosponsors on January 9. On February 2, it was referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Committee on the Judiciary. No further action was taken during the balance of the 110th Congress.

Sections 1, 3, 4, and 5 of the proposed amendment dealt with the election process. Section 1 specified election by "the people of the several States and the district constituting the seat of government." This provision recapitulated existing requirements of state residence (or residence in the District of Columbia), and implicitly excluded Puerto Rico and U.S. territories.15 Section 3 set a plurality, rather than a majority requirement for election. Section 4 established in the Constitution the joint candidacies currently provided in state law. Section 5 empowered Congress to provide by law for: (1) the death of candidates prior to election day; and (2) any tie vote in a presidential election.

The Section 5 language appeared to give Congress broad authority in these situations, arguably extending to various options in the event of the death of a candidate or candidates and including such options as rescheduling elections and/or the date for casting electoral votes. In the event of a tie, the amendment arguably sought to empower Congress to provide for a second round election to the break the deadlock, or authorize Congress itself to break a tie. It is less clear whether the amendment would have made an implicit grant of authority to Congress to intervene in the process of replacing party candidates under such circumstances, an eventuality that has historically been addressed by the parties through internal procedures.16 If so, this would have constituted a departure from current practice and political tradition by empowering Congress to intervene in the internal workings of the political parties.

Section 2 of the proposed amendment contained three elements relating to voter qualifications. First, it specified that voters for President and Vice President "shall have the qualifications requisite for electors of Senators and Representatives.... " This sentence built on, and explicitly extended to the presidential electorate, existing constitutional voter qualifications stated in Article I, Section 2 (for the House), and the 17th Amendment (for the Senate), and as further defined and guaranteed by the 14th, 15th, 19th, 24th, and 26th Amendments. Next, if adopted, it would have empowered the states to set "less restrictive qualifications with respect to residence.... " In contemporary practice, most states have reduced voting residence requirements to an average of 30 days. Since the states already possess the power to reduce or eliminate these periods, this section might be regarded as redundant, or perhaps as providing encouragement, admonishment, or a constitutional imprimatur, to efforts to adopt shorter residency requirements for voters, or to eliminate them altogether.

Finally, Section 2 proposed to empower Congress to "establish uniform residence and age requirements." Here again, this provision arguably constituted a mandate for potential expansion of federal control over elections. Voting residence requirements, as noted previously, have been traditionally a state responsibility, but the amendment sought to vest in Congress authority to preempt state laws in this area, at least for presidential elections. Similarly, Congress would have been empowered by the amendment to establish a lower (or higher) voting age for presidential elections than is currently provided in the 24th Amendment.17 Criticisms of both uniform residence and age requirements might expect to be countered by the argument that federal elections are a nationwide expression of the public will, for which national voting requirements are fully justified.

Section 6 of the proposed amendment set the time when it would come into force if ratified: that is, for the first presidential election that occurred one year or longer after the date on which the amendment had been declared to be ratified. For instance, if the amendment had been successfully proposed by Congress, in 2008, and ratified by the states in 2009, it would have been effective with the presidential election of 2012.

H.J. Res. 36

This measure was introduced by Representative Jesse Jackson Jr., on February 13, 2007. On March 1, the resolution was referred to the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Committee on the Judiciary, however, no further action was taken on the proposal.

Section 1 of this measure proposed direct popular election of the President and Vice President by the citizens of the United States citizens, "without regard to whether the citizens are residents of a State." Although now moot, the meaning of this language is open to differing interpretations. For instance, it would likely be interpreted as empowering citizens registered in U.S. territories to vote for President. It might, however, also be considered to require state and local authorities to permit any citizen to vote in a presidential election, without regard to existing residence or voter registration arrangements. If so, this might have led to complications in vote counting and registry and increased costs for local authorities. They might have believed it necessary to institute one ballot for the presidential vote, and a separate one for "down ballot" elections in order to ensure that only voters who are registered in the jurisdiction cast votes for state and local office. Here again, however, the argument may be made that election of the President and Vice President is of such profound national importance, it must transcend the convenience of state and local governments.

Section 2 of H.J.Res. 36 declared that "the persons having the greatest number of votes ... shall be elected, so long as such persons have a majority of the votes cast." This provision of the proposed amendment differed from most direct election proposals, which more commonly establish a 40% plurality or a simple plurality to elect. More problematic, however, was the fact that while it established a majority requirement, H.J.Res. 36 did not incorporate any procedures for elections in which no candidate wins a majority.18 Since popular vote plurality elections occur with some regularity, this omission could have been remedied in committee by such procedures as a runoff election or election by Congress under such circumstances. An additional option could have empowered Congress to provide by legislation for such events, leaving selection of the vehicle to the judgment of the legislature.

This measure was introduced by Senator Bill Nelson of Florida on June 6, 2008. It was referred to the Senate Committee on the Judiciary the same day, but no further action was taken on it.

Section 1 of this proposed amendment to the Constitution sought to establish direct election of the President and Vice President. Unlike some other direct election proposals, it did not require a majority or plurality threshold of popular votes to elect, but the attainment of some level of plurality in order to win the presidency is a common sense inference.

A major change proposed by the measure was that Section 1 also proposed to extend participation in presidential elections beyond the states and the District of Columbia to the territories of the United States. This expansion could arguably have been justified on the grounds that inhabitants of most U.S. territories are citizens, and therefore deserve the right to vote. Supporters might suggest this to be the further and logical extension of the right to vote for President, in the same tradition as the 23rd Amendment, which granted this right to residents of the District of Columbia. Prior to the amendment's ratification in 1961, inhabitants of Washington, D. C. had much in common with the current status of residents of the territories, since they were also U.S. citizens who did not reside in a state, and could not vote for President and Vice President.

Opponents might have argued that, while the territories are U.S. possessions, and that many of their inhabitants are citizens, they are not states, and, as a group, are unlikely to be admitted to the Union at the near future. This amendment, they might have argued, would violate the principles of federalism and devalue the institution of statehood. Nor, they might have added, is the situation analogous to that of the District of Columbia, which was part of the nation since independence. By comparison, the territories and other U.S. dependencies were largely acquired in the late 19th and early 20th centuries, generally by treaty or purchase. Moreover, they might have added, in the case of American Samoa, its inhabitants are not U.S. citizens, but rather, American nationals. Additional questions might have been raised as to the precise status of certain entities under U.S. jurisdiction whose political status remains arguably indefinite and anomalous.

Section 2 of the proposed amendment sought to expand congressional authority over the presidential election process in several respects. First, it proposed to empower Congress to determine the "time, place, and manner of holding the election." This would have extended the existing grant of authority over congressional elections provided in Article I, Section 4, clause 1 of the Constitution. This section would also have authorized Congress to determine "entitlement to inclusion on the ballot." This language potentially superseded existing arrangements on ballot placement and status, which have traditionally been a state responsibility. Section 2 concluded by proposing further extension of congressional authority to "the manner in which the results of the election shall be ascertained and declared."

Supporters of these elements of Section 2 might have argued that they were necessary to ensure that presidential elections are administered fairly and equitably. With respect to ballot access, they might have asserted that existing state requirements are excessive and deliberately stringent, that they simultaneously guarantee ballot placement for the two major parties and impede access by new parties and independent candidates. Similarly, they might have suggested that congressional power over vote counting and election ascertainment would guarantee uniform and efficient national standards for election administration, eliminating a patchwork of existing state requirements, and providing stronger deterrence to potential vote fraud.

Opponents might have asserted that these grants of authority, if embodied in legislation, would be a usurpation of functions long performed at the state level. Such legislation would, they might have asserted, constitute a further infringement on state authority, and could lead to duplicative and needlessly complex election administration systems as state authorities tried to reconcile competing and possibly conflicting state and federal procedures. They might have further noted that legislation stemming from the provisions of Section 2 would impose heavy costs on the states as they seek to meet federal requirements. It could be noted, however that precedent exists for federal assistance in this area. Congress has provided financial assistance to the states to help them meet new voting systems standards mandated in the Help America Vote Act, "HAVA" (P.L. 107-252, 116 Stat. 1666).19 Opponents might have noted in rebuttal that HAVA grants are expected to be a temporary expedient. They might also have questioned the willingness of Congress and the federal government to assume a permanent responsibility for, and the increased expenses associated with, greater control over these aspects of the presidential election administration process.

Contemporary Activity in the States

While only a constitutional amendment could alter the fundamental arrangements of the electoral college, some elements of the system could be changed by measures adopted in the states. As noted previously, the Constitution gives the states plenary power in the ways they choose to pick presidential electors. The language in Article II, Section 1, clause 2 is notably broad and general: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators to which the State may be entitled in Congress.... " This breadth of authority was intended by the founders, who sought to provide considerable discretion to the several states as to how they would choose and allocate presidential electors.20

In other words, the states are free to experiment with systems of elector selection and electoral vote and allocation, up to a point. Indeed, it may be argued that with such experiments the states fulfill their traditional role as "laboratories" in which potential national policy initiatives can be developed and tested. This report has previously identified several areas in which the states have exercised their prerogative in the past. First, all 50 states and the District of Columbia (DC) currently provide for joint tickets, in which the public casts a single vote for electors pledged to a single pair of candidates. Next, the states and DC provide for popular election of presidential electors. Finally, in all but two jurisdictions, Maine and Nebraska,21 the electors are chosen en bloc under the general ticket or winner-take-all system; that is, the group or ticket electors pledged to the candidates who win a plurality of popular votes in the state are elected as a group. Three recent efforts to effect change by using the power accorded to states in Article II, Section 1, clause 2 are discussed below.

2004: Colorado Amendment 36—A Proportional Plan State Initiative

The proportional plan of awarding electoral votes has been proposed as an alternative to the winner-take-all or general ticket method dominant today. Although the plan is examined in greater detail in the Appendix, briefly, it would require electors (and electoral votes) to be allocated in each state according to the percentage of popular votes won by the competing candidates. For example, assume State X is allocated 10 electoral votes. Next, assume in the election, Candidate A22 receives 60% of the popular vote, Candidate B receives 30%, and Candidate C, representing a third party or independent candidacy, receives 10%. Under the general ticket or winner-take-all plan, Candidate A would win all 10 electoral votes. Under the proportional plan, Candidate A would win six electoral votes, Candidate B would receive three, and Candidate C would receive one vote.

On November 2, 2004, Colorado voters considered a proposed state constitutional amendment23 that would have established just such a proportional system in that state. If the amendment had passed and survived legal challenges, it would have provided proportional allocation of Colorado's presidential electors for 2004 and all future presidential elections. This was possible through citizen action because Colorado is one of the 18 states that provide for the proposal and approval of amendments to their state constitutions by popular vote.24

The amendment sought to allocate electoral votes and electors based on the proportional share of the total statewide popular vote cast for each presidential ticket. The percentage of the vote each ticket received would have been multiplied by Colorado's total of nine electoral votes. These figures would then have been rounded up or down to the nearest whole number of electors and electoral votes, but any ticket that did not receive at least one electoral vote under this method would have been eliminated from the total. If the sum of whole electoral votes derived from this computation were to be greater than nine, then the ticket receiving at least one whole electoral vote, but fewest popular votes, would have had its electoral vote total reduced by one. This process would have continued until the computed allocation of votes reached nine. Conversely, if the sum of whole electoral votes awarded after rounding the percentages of popular votes were less than nine, then such additional electoral votes as necessary to bring the number up to nine would have been allocated to the ticket receiving the most popular votes, until all nine electoral votes were so allocated. In the event of a popular and electoral vote allocation tie (i.e., Candidates A and B each receiving 4.5 electoral votes), then the Colorado Secretary of State would have determined by lot who would receive the evenly split electoral vote.25

At the time, questions were raised as to whether this effort to change the allocation formula for Colorado's electoral votes by initiative was constitutional. Specifically, the U.S. Constitution (in Article II, Section 1, clause 2) provides that, "Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.... " Since the early years of government under the Constitution, the state legislatures have generally exercised this grant of power by authorizing the voters to choose electors, and they have usually specified the winner-take-all or general ticket system as the means by which the voters' decision is used to allocate electors and electoral votes.

The fact that Colorado's proposed Amendment 36 would have altered the formula for awarding electoral votes by a vote of the people, not the legislature, was the salient issue in contention. The Colorado legislature's right under Article II to establish a proportional system was not in dispute; the question rather, was, did the Colorado legislature have authority to subdelegate to the voters at large its Article II powers to determine and change the existing method of appointing electors to a popular vote? Could the voters of Colorado have acted in place of, or as the state legislature? The Colorado Constitution specifically empowers the people of the state to "to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly.... "26

Proponents of Amendment 36 argued that this was sufficient authority to change the allocation of electoral votes by popular vote. Further, it could have been argued that the U.S. Constitution's failure to expressly prohibit this procedure, or others like it, provides an implicit endorsement of such actions. On the other hand, opponents could have counter-argued that the U.S. Constitution clearly delegates this power to the state legislatures, and only the state legislatures.27 Moreover, a commentary on the Colorado process of amendment by initiative noted that, "An amendment is not valid just because the people voted for it. The initiative gives the people of a state no power to adopt a constitutional amendment which violates the federal constitution."28

On August 13, 2004, Colorado's Secretary of State announced that the proposed amendment had gained sufficient voter signatures to qualify for inclusion on the ballot at the November 2 general election.29 After a spirited campaign that stirred some national interest, Amendment 36 was ultimately defeated by a vote of 1,307,000 to 697,000.30 For the record, if the amendment had been in effect for the 2004 election, the Bush-Cheney ticket would have received five electoral votes, while Kerry-Edwards would have received four. Under the winner-take-all system, the Republican ticket received all nine Colorado electoral votes.

The district system for awarding electoral votes is unusual among reform proposals in that two states, Maine and Nebraska, currently have it on the books. Briefly, under the district plan, popular votes are tallied twice: first, district by district,31 and again on a statewide basis. The presidential ticket (actually elector) who won the most votes in each district would receive one vote (actually one elector) from that district. The ticket winning the statewide count would be awarded two additional electors, representing the two additional "senatorial" electors each state receives. For more detailed information on the district plan, see the Appendix.

In July, 2007, a group styled "Californians for Equal Representation" filed a legislative ballot measure with the California Attorney General; the proposed statute, the Presidential Election Reform Act, incorporated a standard district system for choosing presidential electors, and hence, awarding electoral votes.32 The organizers sought sufficient voter petitions to place the item on statewide ballot at the June 3, 2008, California congressional, state, and local primary.

Supporters of the proposal asserted that the winner-take-all/general ticket system discounted and disenfranchised millions of California voters in the presidential election. For instance, in 2004, the Democratic Kerry-Edwards ticket received 54.3% of the popular vote, and all 55 electoral votes, while the Republican Bush-Cheney ticket, which received 44.4% of the popular vote, gained none.33 If, on the other hand, the district system had been in place in California in 2004, Kerry-Edwards would have received 33 electoral votes, and Bush-Cheney, 22.34

Opponents claimed that Californians for Equal Representation was a Republican-dominated group whose goal was to obtain Republican electors in a state that has voted Democratic in presidential contests since 1992, noting in support of this argument that most of the group's funds had been contributed by Republican-connected donors. 35 California Counts, the advocacy group coordinating support for the measure, denied the allegation and countered by releasing lists of Democratic and Independent voters who contributed to the effort.36

The proposed measure was also criticized on constitutional grounds. Vik Amar, a legal commentator, argued that the California Presidential Election Reform Act was a legislative initiative that would likely be found unconstitutional if challenged. He based his assertion on the argument, noted previously in discussions of Colorado Amendment 36, that the constitutional grant of power to the states to appoint electors "in such manner as the Legislature thereof may direct.... " ought to be narrowly construed. By this reasoning, a legislative act passed by initiative would not meet the constitutional standard, because the Constitution requires action by the state legislature, and only the legislature, to change the process.37

The proposed California Presidential Election Reform Act thus became an object of political and constitutional controversy almost from the start. In addition, proponents faced the obstacle of collecting supporting petitions from a number of registered voters sufficient to meet the California state initiative threshold, which required signatures of a number of voters equal to 5% of votes cast in the most recent gubernatorial election. Computed from the 2006 gubernatorial results, this figure in 2007 would have amounted to 433,971 valid signatures of registered voters.38 Organizers first abandoned their effort to place the initiative on the June 3, 2008 primary ballot, opting instead for the November 4 general election ballot, but this goal also appeared to be beyond the means of the measure's supporters. On February 5, 2008, press reports indicated that no petitions had been filed with the Elections Division of the Office of the California Secretary of State, and that the California Presidential Reform Act would not be on either ballot in 2008.39

2006-Present: National Popular Vote—Direct Popular Election Through An Interstate Compact

The National Popular Vote (NPV) campaign has been advanced by an interest group that draws support from members of both national parties. The NPV plan would eliminate existing electoral college arrangements and substitute de facto direct popular election by means of an interstate agreement or compact. Under the compact's provisions, legislatures of the 50 states and the District of Columbia would exercise their constitutional authority to appoint presidential electors themselves. The key provision of NPV is, however, that the states would then use their power to chose electors committed to the presidential/vice presidential ticket that gained the most votes nationwide. This would deliver a unanimous electoral college decision for the candidates winning a plurality of the popular vote.

Origins

The idea for NPV is generally credited to a 2001 article by constitutional scholars Akhil and Vikram Amar. The authors suggested that a compact by a group of states would be able to achieve the goal of direct popular election without the need to meet the constitutional requirements necessary for a constitutional amendment.40 This proposal, which became the National Popular Vote plan, relies on the Constitution's broad grant of power to each state to "appoint, in such Manner as the Legislature thereof may direct [emphasis added], a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.... "41

The Plan

Specifically, the plan calls for an agreement or compact in which the legislatures in each of the participating states would agree to appoint electors (and hence, electoral votes) pledged to the candidates who won the nationwide popular vote. The appropriate authority in each state would tally and certify the "national popular vote total" within the state; the state figures would be aggregated and certified nationwide, and in each state the slate of electors pledged to the "national popular vote winner" would be appointed. Barring unforeseen circumstances, the NPV would result in a unanimous electoral college vote: 538 electors for the winning candidates for President and Vice President.

In order to address state concerns about premature commitment to the NPV plan, the process would come into effect only after approval of the compact by a number of states whose total electoral votes equal or exceed 270, the current majority required to elect under the Constitution.

In the event the national popular vote were tied, the states would be released from their commitment under the compact, and would choose electors who represented the presidential ticket that gained the most votes in each particular state.

States would retain the right to withdraw from the compact, but if a state chose to withdraw within six months of the end of a presidential term, the withdrawal would not be effective until after the succeeding President and Vice President had been elected.

One novel provision would enable the presidential candidate who won the national popular vote to fill any vacancies in the electoral college with electors of his or her own choice, presumably provided the electors meet constitutional qualifications for that office.

National Popular Vote, Inc

The NPV advocacy effort is managed by National Popular Vote, Inc., a "501(c)(4)" non profit corporation, established in California in 2006 by Barry Fadem, an attorney specializing in initiative and referendum law, and Stanford University professor John R. Koza.42 As a 501(c)(4) entity, it is permitted to engage in political activity in furtherance of its goal, so long as this is not its primary activity. The organization's board members include former Senators and Representatives of both major political parties, which suggests a degree of bipartisan support on the national level. As of December 26, 2008, NPV claimed the support of 1,246 state legislators, over one sixth of the 7,382 total, and endorsement by the New York Times, Los Angeles Times, Chicago Sun-Times, Minneapolis Star Tribune, Boston Globe, and other newspapers.43

Action in the State Legislatures

The vehicle for NPV, as noted earlier in this report, is the interstate agreement or compact, "Agreement Among the States to Elect the President by Popular Vote."

States That Have Approved NPV

By the end of 2008, the compact had been introduced in 45 states, of which four, possessing a total of 50 electoral votes, had adopted it. They were:

States in Which One Chamber or Both of the Legislature Approved NPV in the 2008 Session

The NPV interstate compact was been introduced in 21 states in their 2008 legislative sessions, but has passed one or both chambers in only seven. They were:

California (55 electoral votes), passed in both the Senate and Assembly, but was vetoed by the governor;44

Maine (four electoral votes), passed the Senate, but was indefinitely postponed in the House;45

Massachusetts (12 electoral votes), passed the House of Representatives, and the Senate, but the Senate did not vote to send the bill to the governor for signature;46

North Carolina (14 electoral votes), where it passed the Senate, but the House took no action;47

Rhode Island (four electoral votes), where it passed the Senate and the House, but was vetoed by the governor;48

Vermont, (three electoral votes) where it was passed by both houses of the legislature, but was vetoed by the governor;49

Washington, (11 electoral votes) where it also passed the Senate, but died in committee in the House of Representatives.50

In a "best case" scenario for 2008, in which California, Maine, North Carolina, Rhode Island and Washington approved NPV, they would have added 88 additional electoral votes, for a total of 138, slightly more than 50% of the 270 which would be required for the NPV compact to be honored by participating states. Although NPV did not reach this optimistic goal the proposal, it was approved in four states. At year's end, it remained to be seen whether state approvals earlier in 2008 indicated the beginning of a trend toward approval, or a "high water mark" for the effort.

National Popular Vote: Support and Opposition

Arguments in support of and opposition to the National Popular Vote proposal embrace points generally similar to the pros and cons for direct popular election examined earlier in this report. In most plans to establish direct election of the president, the central issue is a question of "one big thing" versus "many things"—that is, the simplicity, logic, and democratic attractiveness of the direct election idea as compared to the more complex array of related but arguably less compelling factors cited by supporters of the existing system.51

The National Popular Vote movement advocates the NPV compact on the grounds of fairness and respect for the freely expressed voice of the voters which is the cornerstone of all direct popular election plans. In particular, it advocates a national vote that, de facto, eliminates the role of states by binding them to support the nationwide vote winners, notwithstanding the results in their own jurisdictions. According to its own website, the central argument in its favor is that the compact "would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and the District of Columbia)."52 It would guarantee at least a plurality President and Vice President, thus eliminating any possibility of Presidents who won fewer votes than their opponent, one of the most widely criticized aspects of the electoral college system. It would also reduce the likelihood of other problem areas under the existing system, including the faithless elector, "disenfranchisement" under the winner-take-all system, arithmetical advantage derived by less populous states, and the potential for contingent election under the 12th Amendment.53 It is difficult to underestimate the appeal of this simple yet arguably compelling proposal: the candidates who win the most votes should win the presidency (and vice presidency).

Opponents, by comparison, have cited many of the assertions examined in the pro-con section of this report. These may be categorized as philosophical and political criticisms of the NPV plan. Generally, they do not deny the appeal of the argument favoring direct popular election and the NPV plan. They suggest, however that the various benefits conferred by the electoral college system, the "many things," are of such cumulative value that they outweigh the "one big thing" attractiveness of NPV. Among these are assertions that:

the current arrangement is a fundamental component of federalism;

it confers "voting power" not on less populous states, but on residents of more populous states, and in particular, minority voters in these states;

it promotes a moderate and geographically inclusive two-party system; and

it deters post-election strife and controversy by magnifying the winners' electoral vote margin in most elections.54

A further philosophical criticism rests on the grounds of the "concurrent majorities" tradition. This concept holds that, in order for any policy proposal to be able to claim legitimacy in a continent-spanning federal republic such as the United States, it needs to gain broad acceptance by a majority of citizens, representing a wide range of geographic regions, within a limited period of time. This concept has never been written into law or the Constitution, but Congress has historically honored the concurrent majorities idea by requiring that most constitutional amendments be approved by the states within a seven-year period following an amendment's proposal by Congress. Where, critics may ask, is a similar time limit governing the National Popular Vote proposal? What is the date certain after which an effort to adopt NPV would expire, or return to "square one?"55 If the NPV approaches its own benchmark of 270 electoral votes on or before July 20 of a presidential election year (the trigger date set by the proposed compact), what sort of disruptive effect would this have on the presidential nominating campaign, or, for that matter, on the measured deliberations of the legislatures of states that have rejected, the NPV compact, or those in which pro-NPV legislation was never introduced.

NPV supporters have also suggested a practical benefit to nearly all "non-battleground" states from the compact. They maintain that presidential nominees and their organizations would spread their presence and resources more evenly as they campaigned for every vote nationwide, rather than concentrate on winning key states: "candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the concerns of voters of states that they cannot possibly win or lose. This means that voters in two thirds of the states are effectively disenfranchised in presidential elections because candidates concentrate their attention on a small handful of "battleground" states. In 2004, candidates concentrated over two-thirds of their money and campaign visits in just five states; over 80% in nine states; and over 99% of their money in just 16 states."56 For instance, according to this argument, Californians seldom see the presidential or vice presidential nominees or benefit from campaign spending because even though it controls the largest number of electoral votes, the Golden State has been regarded in recent elections as being reliably Democratic in its presidential sympathies. Similar arguments would apply to Texas, a state that has voted for Republican presidential nominees since 1980.

Opponents might argue that spreading campaign spending resources in states that aren't "battlegrounds" is a questionable goal with which to justify such a profound change in the presidential election process. Campaign appearances, spending by campaign organizations, and collateral spending generated by the attendant media, they might continue, were never intended to be a local economic stimulus package, nor are the amounts in question sufficient to make much of a difference in any state, with the possible exception of sparsely-populated New Hampshire during its quadrennial primary campaign. Moreover, they might continue, it is equally dubious to assert that nominees will slight the concerns of citizens of the states from which they draw their greatest support, or that concentrated campaigning in the "battleground" states somehow "disenfranchises" voters in others. Writing in the Wall Street Journal, former Delaware Governor Pete duPont maintained that, contrary to assertions that NPV would stimulate more frequent candidate appearances in less populous states, "... direct election of presidents would lead to geographically narrower campaigns, for election efforts would be largely urban.... Rural states like Maine, with its 740,00 votes in 2004, wouldn't matter much compared with New York's 7.4 million or California's 12.4 million votes."57

National Popular Vote: Legal and Constitutional Issues

Some observers have raised questions as to the constitutionality of the National Popular Vote plan. Derek T. Muller, writing in Election Law Journal, asserts, first, that NPV is an interstate compact within the meaning of the Constitution, and as such, it must be approved by Congress before it could take effect.58 The author reviews the history of interstate compacts and their interpretation over the past two centuries, noting that, as currently construed, certain types of interstate agreements or compacts do not require the explicit consent of Congress; these "may be entered without the consent of Congress, because they do not affect national sovereignty or concern the core meaning of the Compact Clause."59 They are, in effect, not compacts in the constitutional sense. He goes on to assert that the National Popular Vote agreement is, however, an interstate compact that would require explicit congressional approval, because of the ways it binds the states to a particular course of action, places time limits on their ability to withdraw from NPV, and more generally meets or exceeds conditions historically found to define "interstate compacts" by the Supreme and other U.S. Courts.60

Muller goes on, moreover, to maintain that the NPV concept is inherently unconstitutional unless specifically approved by Congress. Reviewing the record of federal court decisions concerning interstate compacts, the author asserts that the NPV compact would enhance the political power of participating states, but reduce that of those that did not join the compact:

States have an interest in appointing their electors as they see fit, and the Presidential Electors Clause of the Constitution grants this exclusive authority to the states. Technically, the non-compacting sister states can still appoint electors, but the Interstate Compact makes such an appointment meaningless. The outcome of the Electoral College would be determined by an arranged collective agreement among compacting states, regardless of what non-compacting states do about it.... This evisceration of political effectiveness is a sufficient interest to invoke the constitutional safeguard of congressional consent.61

The National Popular Vote movement agrees with Mr. Muller's thesis as to whether NPV is an interstate compact: in Every Vote Equal, the movement's major written source, concludes:

The subject matter of the proposed "Agreement Among the States to Elect the President by National Popular Vote" concerns the manner of appointment of a state's presidential electors. The U.S. Constitution gives each state the power to select the manner of appointing its presidential electors.... Thus the subject matter of the proposed interstate compact is a state power and an appropriate subject for an interstate compact.62

Contrary to Mr. Muller, however, Every Vote Equal maintains that the Constitution implicitly permits valid interstate agreements without the need for congressional approval on any subject that falls within the states' constitutional authority.63 The authors further note that since the NPV compact would concern the manner of appointment of a state's electors, a power that resides exclusively with the states, the agreement would therefore be an appropriate subject for an interstate compact.64 They go on to assert that the Supreme Court has twice rejected the argument that an interstate compact was unconstitutional because "it impaired the sovereign rights of non-member states or enhanced the political power of the member states at the expense of other states," as has been asserted by NPV opponents.65

Other questions have been raised concerning whether the National Popular Vote compact might violate the Voting Rights Act.66 Writing in Columbia Law Review, David Gringer maintains that NPV may be at variance with several provisions of the act. Specifically, he argues that the plan conflicts with Section 2 of the act because moving from "a state-based to a national popular vote dilutes the voting strength of a given state's minority population by reducing its ability to influence the outcome of presidential elections."67 Gringer also asserts that the NPV compact may violate Section 5 of the act, which restrains "covered"68 jurisdictions from implementing changes to "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting,"69 until the law has been reviewed for potential discriminatory intent or effect by the U.S. Attorney General or a three-judge panel from the U.S. District Court for the District of Columbia. This process is known as preclearance. He argues that the NPV compact would qualify as a covered practice under Section 5, and that the legislatures of all the affected states would be required to obtain preclearance before implementing the compact.70 The National Popular Vote organization has yet to respond to Gringer's assertions in Columbia Law Review.

It is beyond the scope of this report to speculate on the outcome of challenges that might be raised to the National Popular Vote compact on any of the legal or constitutional questions cited previously. The fact that these issues have been raised, however, suggests the possibility NPV might be subject to legal challenges before it could become operational should it meet the 270 electoral vote threshold.

Prospects for Change—An Analysis

Trends in Congressional Electoral College Reform Proposals

Congressional interest in constitutional amendments to reform or eliminate the electoral college has declined in recent decades. Despite a brief uptick following the problematic 2000 presidential election, the trend has continued: only two relevant amendments were introduced in the 110th Congress. This arguable lack of congressional interest, and demonstrable lack of legislative activity, contrasted strongly with the period between 1950 and 1979, when electoral college reform measures were regularly considered in the Senate and House Judiciary committees, and proposed amendments were debated in the full Senate on five occasions, and in the House twice.71

From those proposals that have been offered in recent years, two trends are noticeable to the long term observer. First, the volume of proposed amendments that would reform the electoral college, as opposed to those that would eliminate the electoral college and substitute direct popular election, has declined almost to zero. Second, the scope of proposed direct popular election amendments is arguably evolving in complexity and detail.

It is unclear whether the first development reflects a decline in support for the electoral college (either as it exists or reformed), a lack of organized interest in these reform proposals, or simply the absence of a sense of urgency on the part of Members who might be inclined to support or defend the current system in some form. It is likely, that if a direct election amendment gained broad congressional support and began moving toward congressional approval and proposal to the states, Members who support the current system in some form would coalesce to defend the electoral college. Alternatively, they might be spurred by the prospect of action to propose reform measures that would address problem areas of the current system. This was the case the last time a direct election amendment came to the floor (in the Senate), during the 95th Congress (1979-1980).72

Another apparent trend is that recent reform proposals go beyond the concept of simply substituting direct election for the electoral college. In recent Congresses, these amendments have been more likely to include provisions that would enhance and extend the power of the federal government to legislate in such areas as residence standards, definition of citizenship, national voter registration, inclusion of U.S. territories and associated areas in the presidential election process, establishment of an election day holiday, ballot access standards for parties and candidates, etc.73 This trend, it may be posited, reflects frustration on the part of many voters and their elected representatives over the uncertainties and inconsistencies in local election administration procedures that were revealed in the 2000 and 2004 presidential elections. If the amendments in which such provisions have been incorporated were to be proposed and ratified, they could be used to set broad national election standards (provided Congress chose to exercise the new authority granted in these proposals) which would supersede many current state practices and requirements.

This eventuality raises two possible issues. The first is the question of whether such federal involvement in traditionally state and local practices would impose additional costs on state and local governments, and thus be regarded as an "unfunded mandate." Indeed, bills that had the effect of imposing costs on state and local election authorities might be subject to points of order on the floor of both the House and Senate.74 One response by the state and local governments might be to call for federal funding to meet the increased expenses imposed on them by federal requirements. Precedent for this exists in the grant program incorporated in the Help American Vote Act (HAVA)75.

A second issue is related to the consequences of such an amendment, and centers on perceptions as to whether it might be regarded as constitutionally dubious federal intrusion into state and local responsibilities. For instance, a more far-reaching scenario might include the gradual assumption of the entire election administration structure by the federal government. In this hypothetical case, questions could be raised as to: (1) the costs involved; (2) whether a national election administration system could efficiently manage all the varying nuances of state and local conditions; and (3) what would be the long term implications for federalism? Conversely, it could be asserted that a national election administration structure is appropriate for national elections, and that state or local concerns are counterbalanced by the urgent requirement that every citizen be enabled and encouraged to vote, and that every vote should be accurately counted.

Prospects for a Constitutional Amendment

Some observers assumed that action of the electoral college in 2000, in which George W. Bush was elected with a small majority of electoral votes, but fewer popular votes than Al Gore, Jr., would lead to serious consideration of constitutional amendment proposals that would have reformed or eliminated the electoral college. Notwithstanding these circumstances, none of the amendments introduced in either the 107th through 110th Congresses received more than routine committee referral. In the 107th Congress, attention focused, instead, on proposals for election administration reform, resulting in passage of the Help America Vote Act (HAVA) in 2002. As noted previously, this legislation substantially expanded the role of the federal government in the field of voting systems and election technology through the establishment of national standards in these areas and the provision of federal assistance to the states to improve their registration and voting procedures and systems.76 The congressional response to the 2000 election controversy was incremental, rather than fundamental.

Other factors may also contribute to the endurance of the electoral college system. Perhaps foremost is the fact that the U.S. Constitution is not easily amended. Stringent requirements for proposed amendments, including passage by a two-thirds vote in each chamber of Congress, and approval by three-fourths of the states, generally within a seven-year time frame, have meant that successful amendments are usually the products of broad national consensus, a sense that a certain reform is urgently required, or active long-term support by congressional leadership.77 In many cases, all three aforementioned factors contributed to the success of an amendment.78 Further, while the electoral college has always had critics, its supporters can note that it has selected "the people's choice" in 48 of 52 presidential elections held since ratification of the 12th Amendment, a rate of 92.3%.79

In the final analysis, given the high hurdles—both constitutional and political—faced by any proposed amendment, it seems unlikely that the electoral college system will be replaced or reformed by constitutional amendment unless or until its alleged failings become so compelling that large concurrent majorities in Congress, the states, and among the public, are disposed to undertake its reform or abolition.

Another factor influencing the potential for a successful amendment is, arguably, public perceptions of how well the electoral college has functioned. The system worked almost perfectly, at least according to contemporary expectations, in the presidential election of 2008. Democratic nominee Senator Barack Obama was able to translate a modest popular vote majority of 52.9% (69,457,000) to 45.7% (59,935,00) for his Republican opponent, Senator John McCain, into an overwhelming electoral vote margin of 365 to 173.80 Given this outcome, it is arguable that there will likely be little congressional interest in devoting the high levels of time and energy demanded to consideration of an electoral college-related amendment, although Members will almost certainly introduce one or more in the 111th Congress. If however, the 2008 results had been close in either popular or electoral votes, or had resulted in a bitterly contested post-election struggle, or the election of a President who received fewer votes than his major opponent, the outlook for the 111th Congress might have been different.

State Action—A Viable Reform Alternative?

For at least a century, American tradition has enshrined the role of the states as "laboratories of reform," in which innovative policy experiments could be tested on a limited scale, and, if successful, ultimately adopted at the federal level. In the question of electoral college reform, at least some of the states appear to have assumed their classic role by implementing policy alternatives. Maine and Nebraska, for instance, have followed the district system for decades, and for the first time in 2008, one of the two states, Nebraska, split its electoral vote. Senator Obama took one electoral vote, having won the 2nd Congressional District, while Senator McCain took three, having won the 1st Congressional District and the statewide tally.81

Arguably, the most compelling recent developments in the field of electoral college reform have emerged at the state level. Two of these, Colorado Amendment 36 in 2004 and "California Counts" in 2006-2007, were unsuccessful, but both aroused interest and support and criticism for their attempts to reform the electoral college, within the two respective states. Perhaps more noteworthy, or at least better publicized, has been the National Popular Vote campaign, an organized nationwide initiative that has drawn bipartisan support from a wide range of state and local office holders. Moreover, its advisory board includes seven former U.S. Senators and Representatives representing both parties. As noted earlier in this report, the legislatures of four states disposing a total of 50 electoral votes had approved the NPV compact by the end of 2008.

It is difficult to foresee the ultimate course of the NPV movement at the time of this writing. The clear-cut electoral college victory of Senator Obama in the 2008 presidential election could arguably lead to a loss of momentum by the National Popular Vote scheme. Without a compelling reason to proceed, the effort might stall. The 2009 state legislative sessions may well provide an indication of the status of NPV's momentum.

Concluding Observations

John F. Kennedy, while serving in the Senate, was a leading defender of the electoral college against proposals to establish a district plan variant in place of the current (then and now) general ticket or winner-take-all system of allocating electoral votes. In the course of Senate floor debate on this question in 1956, he paraphrased a comment by Viscount Falkland, a 17th century English statesman, declaring of the electoral college, "It seems to me that Falkland's definition of conservatism is quite appropriate [in this instance]—'When it is not necessary to change, it is necessary not to change.... '"82 This aphorism may offer a key to the future prospects of the electoral college. To date, policymakers have generally concluded that it has not been necessary to change the existing system, or perhaps more accurately, there has been no compelling call for change.

The first and only major constitutional overhaul of the electoral college system to date, the 12th Amendment, was a direct response to turmoil accompanying the presidential election of 1800. This was a fundamental "crisis of regime" that, once surmounted, motivated Congress to propose a major reform in very short time. As long as the electoral college system functions well enough to avoid provoking a national crisis of similar scale, it may remain unchanged, if not unchallenged.

Appendix. Electoral College Reform Proposal Variants

This Appendix presents more detailed descriptions of the three most frequently proposed plans to reform the electoral college.

One criticism leveled at each of the electoral college reform plans reviewed below is that the decennial reassignment of electoral votes provides for no adjustment in electoral votes to would reflect variations in population growth among states between censuses. For instance, the allocation of electoral votes following the 2010 census will remain in effect for the 2012, 2016 and 2020 presidential election.

The Automatic Plan

This reform proposal would award all electoral votes in each state directly to the winning candidates who obtained the most votes statewide. In almost all versions, a plurality would be sufficient in individual states to win the state's electoral votes; most versions provide for some form of contingent election in Congress in the event no candidate wins a nationwide majority of electoral votes. This alternative would constitutionally mandate the "general ticket" or "winner-take-all system" currently used to award electoral votes in 48 states and the District of Columbia.

Proponents of the automatic plan argue that it would maintain the present electoral college system's balance between federal and state power, and between large and small states. Proponents note that the automatic plan would eliminate the possibility of "faithless electors"83 Further, the automatic plan would help preserve the present two-party system, under a state-by-state, winner-take-all method of allocating electoral votes. This, they assert, is a strength of the existing arrangement, because it tends to reward parties that incorporate a broad range of viewpoints and embrace large areas of the nation.

Opponents, on the other hand, note presidential elections are still indirect under the automatic system. They further assert that "minority"84 Presidents could still be elected under the automatic system, and it still provides no electoral vote recognition of the views and opinions of voters who choose the losing candidates.

The District Plan

This reform proposal would continue the current allocation of electoral votes by state, and, in common with most reform plans, would eliminate the office of presidential elector. It would award one electoral vote to the winning candidates in each congressional district (or other, ad hoc, presidential election district) of each state. Two electoral votes, reflecting the two additional "constant" or "senatorial" electoral votes assigned to each state by the Constitution, would be awarded to the statewide vote winners. This alternative would constitutionally mandate the system currently used to award electoral votes in Maine and Nebraska.85

Proponents of the district plan argue that it would more accurately reflect the popular vote results for presidential and vice presidential candidates than the winner- take-all method, or the automatic plan, because, by allocating electoral votes according to popular vote results in congressional districts, it would take into account political differences within states.86 They also suggest that in states dominated by one party, the district plan might provide an incentive for greater voter involvement and party vitality, because it would be possible for the less dominant party to win electoral votes in districts where it enjoys a higher level of support, e.g. "Upstate" New York versus the New York City metropolitan area, or northern California vs. the Los Angeles and San Francisco metropolitan areas.

Opponents would note that the district plan retains indirect election of the nation's chief executive, that the potential for "minority" Presidents would continue, and that it might actually weaken the two-party system by encouraging parties that promote narrow geographical or ideological interests and that may be concentrated in certain areas. In fact, they might suggest that adoption of the district plan would encourage gerrymandering, as the parties maneuvered for advantage in presidential elections.

Nebraska split its district votes presidential election for the first time in the 2008, awarding four electors to Republican candidate Senator John McCain, who won two congressional districts and the statewide vote, and one to the Democratic nominee, Senator Barack Obama, who received the most popular votes in state's second congressional district.87 Maine has yet to split its electoral votes under the district plan.

The Proportional Plan

This reform proposal would award electoral votes in each state in proportion to the percentage of the popular vote gained by each ticket. Some versions, known as "strict" proportional plans, would award electoral votes in proportions as small as thousandths of one vote, that is, to the third decimal point, while others, known as "rounded" proportional plans, would use various methods of rounding to award only whole numbers of electoral votes to competing candidates. As noted in the main body of this report, voters in Colorado rejected a proposed state constitutional amendment (Amendment 36) at the November 2, 2004, general election that would have established a rounded proportional system in that state.88 For further information on this proposal, please consult CRS Report RL32611, The Electoral College: How It Works in Contemporary Presidential Elections, by [author name scrubbed].

Proponents of the proportional plan argue that it comes closer than other reform plans to electing the President and Vice President by popular vote, while still preserving the state role in presidential elections. They also assert that the proportional plan reduces the likelihood of "minority" presidents—those who win with a majority of electoral votes, but fewer popular votes than their chief opponent. They also suggest that this option would more fairly account for public preferences, by allocating electoral votes within the states to reflect the actual support attained by various candidates, particularly in the strict, as opposed to rounded, version of the proportional plan, while still retaining the role of the states.

Opponents again suggest that it retains indirect election of the President, which they assert is inherently less democratic than direct popular election. They also note that the proportional plan could still result in "minority" Presidents and Vice Presidents, and by eliminating the magnifier effect of the automatic and district plans, might actually result in more frequent electoral college deadlocks, situations in which no candidate receives the requisite majority of electoral votes.

The 12th Amendment was proposed and ratified following the presidential election of 1804. It replaced the cumbersome dual voting system by electors that had resulted in a constitutional crisis in the 1800 election. The two systems are sufficiently different that 1804 may be considered a "fresh start" for the electoral college. For further information on the original constitutional provisions and the election of 1800, please consult CRS Report RL30804, The Electoral College: An Overview and Analysis of Reform Proposals, by [author name scrubbed] and [author name scrubbed]. See especially pages 2-3.

The two instances prior to 2000 included 1876, when Rutherford B. Hayes was elected with a slim electoral vote majority over Samuel Tilden, who gained more popular votes, and 1888, when Benjamin Harrison gained the presidency with a comfortable electoral vote majority, but fewer popular votes than incumbent President Grover Cleveland. The election of 1824, unique in American political history, saw the electoral and popular vote split among four major candidates. As no candidate received an electoral vote majority, the House chose from among the three top candidates, electing John Quincy Adams, although Andrew Jackson enjoyed a popular and electoral vote plurality.

This provision, currently used in all states and the District of Columbia, requires each voter to cast a single vote for a joint ticket of two candidates, one for President, and one for Vice President. This insures that the President and Vice President will always be of the same political party.

Contingent election is required when no candidate wins a majority of electoral college votes. The President is elected in the House of Representatives, with each state casting a single vote, regardless of its population and the election results in that state. The Senate elects the Vice President, with each Senator casting a single vote.

Faithless electors are those who cast their votes for candidates other than those to whom they are pledged. Notwithstanding political party rules and state laws, most constitutional scholars believe that electors remain free agents, guided, but not bound, to vote for the candidates they were elected to support. For further information, please consult CRS Report RL30804, The Electoral College: An Overview and Analysis of Reform Proposals, by [author name scrubbed] and [author name scrubbed].

U.S. Constitution, Article II, Section 1, clause 2: "Each State shall appoint in such Manner as the Legislature thereof may direct [emphasis added], a number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.... "

A number of election proposals in recent years, including H.J. Res. 36 in the 110th Congress, which is examined later in this report, suggested that voters in the insular areas should also have the right to vote for President and Vice President, based largely on the fact that they are U.S. citizens.

For instance, in 1972, Senator Thomas F. Eagleton resigned as Democratic Party vice presidential nominee on August 1, 1972. He was replaced by R. Sargent Shriver, whose nomination was approved by the Democratic National Committee, as provided for in party rules, on August 8.

Although H.J.Res. 4 did not specify a vehicle by which Congress could effect these changes, legislation seems to be the likely candidate. Since the amendment referred explicitly to presidential elections only, a further constitutional amendment would probably be required if these provisions had applied to other elections as well, such as those for state and local elected officials.

Such elections occur with relative frequency. For instance, no candidate received a majority of the popular vote in five of the last 12 presidential elections: 1960, 1968, 1992, 1996 and 2000. Richard M. Scammon, Alice V. McGillivray and Rhodes Cook, America Votes 26 (Washington: CQ Press, 2006), pp. 8-34.

This power is not, however, absolute. Federal court decisions have struck down state laws concerning appointment of electors that were found to be in violation of the 14th Amendment's guarantee of equal protection. For additional discussion, see United States Constitution: Analysis and Interpretation Constitution Annotated), Article II, Section 1, Clauses 2-4. Available at http://www.crs.gov/products/conan/Article02/topic_S1_C2_1_2.html.

For detailed information on ballot placement requirements in Colorado, please consult: Council of State Governments, The Book of the States, 2004 edition, vol. 36 (Lexington, KY: The Council of State Governments, 2004), p. 14.

See, e.g., McPherson v. Blacker, 146 U.S. 1, 25 (1892) holding that the word "legislature" in Article II, section 1, clause 2 of the U.S. Constitution operates to limit the states; Hawke v. Smith, No. 1, 253 U.S. 221 (1920) holding that the language of Article V is "plain", and that there is "no doubt in its interpretation" that ratification of amendments is limited to the only two methods specifically granted by the Constitution; but see, Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) holding that a referendum did not violate the use of the word "legislature" in Article I, section 4, clause 1 of the Constitution.

"The fox knows many things, but the hedgehog knows one big thing." This quotation of the Greek poet Archilochus by Sir Isaiah Berlin in his essay "The Hedgehog and the Fox," has come to be widely applied to the comparative ways of knowing—the comprehension of a single, overarching principle or fact, versus that of a detailed and interconnected array of related facts, ideas, and principles. Winston Churchill, for instance, might be characterized as a fox, and Vladimir Lenin, a hedgehog.

There is one example of an amendment that was ratified many years after its proposal, the 27th Amendment, which prohibits changes in congressional pay from taking effect until "an election of Representatives shall have intervened." This amendment was submitted in 1791 as part of the package that became the Bill of Rights, but did not gain the necessary three fourths approval among the states until 1992. It is worth noting, that none of the Bill of Rights amendments included the now-traditional seven-year limitation.

Covered jurisdictions were defined in the act as effectively those in which there was evidence of discrimination against minority voting rights in the years prior to passage of the original Voting Rights Act in 1965. They include eight states and local jurisdictions in another eight, located largely, though not exclusively, in the south.

For a detailed examination and analysis of these efforts, please consult Neal R. Peirce and Lawrence P. Longley, The People's President: The Electoral College in American History and the Direct Vote Alternative, rev. ed. (New Haven, CT: Yale University Press, 1981), pp. 131-206.

Article V of the Constitution also provides for amendment by a convention, which would assemble on the application of the legislatures of two-thirds of the states. Any amendments proposed by such a convention would also require approval of three-fourths of the states. This alternative method, however, has never been used.

These conditions have been met in some cases only after a long period of national debate; for example, the 19th Amendment, which extended the right to vote to women, was the culmination of decades of discussion and popular agitation. In other instances, amendments have been proposed and ratified in the wake of a sudden galvanizing event or series of events. An example of this may be found in the 25th Amendment, providing for presidential succession and disability, which received widespread national support following the 1963 assassination of President John F. Kennedy.

The exceptions, as noted earlier, were the elections of 1876, 1888, and 2000, when candidates were elected who had a majority of electoral votes, but fewer popular votes than their major opponents. The one case in which the electoral vote was hopelessly fragmented among four candidates occurred in 1824, when contingent election resolved the electoral college deadlock. Even in this case, the President, John Quincy Adams, was able to govern successfully, despite criticism that he was selected in the House of Representatives.

Faithless electors are those who vote for a candidate other than the one to whom they are pledged. For instance, in 2000, a District of Columbia Democratic elector pledged to the Gore-Lieberman ticket cast a blank ballot as a protest against the election results in general. In 1988, a West Virginia Democratic elector reversed the order of candidates, voting for Lloyd Bentsen for President and Michael Dukakis for vice President.

The district plan is a permissible state option under the Constitution, which does not specify any particular method for awarding electoral votes. In fact, the district plan was widely used in the 19th century.

The question of what districts would be used under a district plan has been considered over time. The use of either ad hoc presidential election districts, or existing congressional districts could be mandated, or states could be offered the option of using either method. The ad hoc district variant of the district plan would empower the states to create special presidential election districts, one for every seat the state holds in the House of Representatives, while rewarding the two "senatorial" electors to the statewide vote winner. A further variation might be to eliminate the "senatorial" electors, and establish a number of presidential election districts equal to the total Senate and House delegations in each state. Any such districts would undoubtedly need to conform to existing Supreme Court mandates that they be as equal in population as possible, in order to assure that the doctrine of "one person, one vote" is observed. The minimal population differences between congressional districts and the fact they are already in existence might argue for their use. On the other hand, in contemporary practice, congressional districts do not always follow the boundaries of existing political subdivisions, recognized regions, or less formal "communities," thus vitiating one of the arguments in favor of the district system, that it takes into effect the different political leanings of different parts of a state. These options might open an opportunity for experiment on the "states as laboratories for the nation" model.

The Constitution does not currently provide for fractions or parts of electoral votes, so a strict proportional system would require a constitutional amendment. Since a rounded proportional plan or system would award whole electoral votes, it is currently a permissible state option under the Constitution.